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BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA

O.A. No. 17/2014/PB/10/EZ SANJAY SINHA

VS

STATE OF BIHAR & ORS

CORAM: Hon’ble Mr. Justice S.P.Wangdi, Judicial Member Hon’ble Prof. (Dr.) P. C. Mishra, Expert Member PRESENT: Applicant : Mr. Rahul Ganguly, Advocate Respondent No. 1 & 4 : Mr. R.N.Das, Sr. Advocate Mr. Binod Kumar Gupta, Advocate Ms. Aishwarya Rajyashree, Advocate Respondent No. 2 : Mr. Kumar Ravish, Advocate Respondent No. 5 : Mr. Prasun Sinha, Advocate Mrs. Arpita Chowdhury, Advocate Respondent No. 6 : Mr. Gora Chand Roy Chowdhury, Advocate Respondent No. 7 : Mr. Ashok Prasad, Advocate proxy of Mr. Surendra Kumar, Advocate Respondent No. 13 : Mr. Anumoy Bosu, Advocate Respondent No.17 : Mr. Somnath Roy Chowdhury, Advocate

Date & Remarks

Orders of the Tribunal

Item No. 6

16 September,

2016.

Affidavit has been filed on behalf of the State of

Bihar, Respondents No. 1 & 4, in compliance to our

order dated 12.8.2016 by Mr. B.K.Gupta, Ld. Govt.

Counsel. It is stated that copies have been served on

the other side.

The affidavit is ordered to be taken on record.

Mr. Somnath Roy Chowdhury, Ld. Adv. for added

Respondent No. 17 prays for leave to file affidavit on

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behalf of the said respondent.

The prayer is allowed. The affidavit is ordered to be

taken on record. Mr. Roy Chowdhury shall ensure that

copies are served on the other side by 19.9.2016.

In the affidavit filed by the Govt. of Bihar, it is

averred that a special task force has been constituted

vide Memo dt. 545 dated 7.9.2016 by the Urban

Development and Housing Deptt., Govt. of Bihar, Cost

of Rs. 25,000/- has been deposited in favour of the

Member Secretary, SEIAA, Bihar in compliance of the

order of the Tribunal, report in tabular form has been

prepared on the basis of information collected from the

Urban Local Bodies (ULBs) on the issue of

Environmental Clearance for construction of buildings

with built up area of 20,000 Sq. meter and above within

the territorial jurisdiction of those ULBs under Bye Law

No. 5(6)(iv) under the Bihar Building Bye-laws, 2014 and

that finalisation of Patna Master Plan is under active

consideration for which Patna Metropolitan Planning

Committee has been approved before which the draft

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Patna Master plan, 2031 shall be placed for

consideration and approval.

We have perused the affidavit and the annexures

filed with it and we find that information furnished in

annexure-C with regard to requirement of EC is rather

vague inasmuch as, except for two Municipalities,

particulars of only those buildings with covered area below

20,000 sq. meters have been furnished. It is not comprehensive.

Information of buildings with covered area more than 20,000 sq.

meters have not been furnished.

The notification No. 618 UD&HD dated 15.9.2016

constituting the Patna Metropolitan Planning

Committee filed as annexure-E, is rather curious

inasmuch as we find that although the Committee is

chaired by the Hon’ble Minister of the Deptt. of Urban

Development and Housing, the rest, other than the EX-

officio and nominated members, are such that their

expertise on the subject appear to be grossly

questionable. It is not understood as to how such a

body can approve a vital document like Master

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Plan for the city of Patna which is not only the capital of

the State of Bihar but also one of the premier cities of

the country. It may not be out of place to mention here

that the city lies on the bank of river Ganges and is,

therefore, environmentally sensitive requiring persons

with knowledge which is not only technical but also

scientific in carrying out the responsibility which the

committee has been charged with.

In view of this, we expect the Govt. of Bihar,

Respondents No. 1 and 4, to review the notification and

appoint persons of eminence having knowledge in the

field as members of such premier committee. The

committee should not be made a repository for

rehabilitation of political elements.

Decision in this regard shall be conveyed to us on

or before the next date.

Mr. Rahul Ganguly, Ld. Advocate for the applicant

has pointed out to us that under the EIA Notification,

2006, in clause 1.1 of Appendix II in particular, under

the heading “Land Environment”, the necessity of

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approved Master Plan/Development Plan of an area is a

mandatory requirement before making any significant

alteration to the existing land use. He submits that

despite our order dated 30.7.2014 followed by order

dated 22.9.2014 and series of orders thereafter, illegal

constructions are continuing not only on the river front

of the city of Patna but also beyond Patna Protection

Wall and within the city in the absence of an approved

Master Plan. It is, therefore, his prayer that the order of

injunction which is confined only to the Ganga river

front of Patna city should be extended to other areas

also in view of expansion of the city proposed by the

State Government.

Mr. Kumar Ravish, Ld. Advocate for SEIAA, Bihar,

Respondent No. 2, admits that constructions have been

going on in the manner stated by the ld. advocate for

the applicant in view of the provision as contained in

Sec. 2(91) of the Bihar Municipal Act, 2007 whereby the

term “Development Plan/Master Plan” has been

defined as “draft Development Plan/Master Plan and

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the final Development Plan/Master Plan prepared

under the Bihar Municipal Act, 2007”.

Mr. R.N.Das, Ld. Sr. Counsel appearing for the State

of Bihar assisted by Mr. B.K.Gupta, Ld. Counsel and Mr.

Hari Shankar, Assistant Town Planner, submits that the

“Development Plan” has also been defined in the Bihar

Urban Planning and Development Act, 2012 under Sec.

2(xvi) thereof as a plan for development or

redevelopment or improvement of an area within the

jurisdiction of a Planning Authority and includes a

Regional Development Plan etc. etc. The meaning of

the term “Development Plan/Master Plan” under the

Bihar Municipal Act, 2007 is for the purpose of said Act

and is quite distinct from the meaning that is provided

under the Bihar Urban Planning and Development Act,

2012. It is his submission that in view of the meaning

provided under the latter Act on the term

“Development plan” there has been no infraction

committed by the State of Bihar.

Mr. B.K.Gupta, Ld. Govt. Counsel assisting Mr.

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R.N.Das, Ld. Sr. Counsel also points out the overriding

provision under Section 113 of the Bihar Urban

Planning and Development Act, 2012 which prescribes

that the provisions of the said Act shall have effect

notwithstanding anything inconsistent therewith

contained in any other law. According to the Ld.

counsel, by this, it meant that the provisions of the

latter Act would supersede the provisions of the former

Act i.e. Bihar Municipal Act, 2007, and, therefore, the

definition of ‘Development Plan’ under sub-section (xvi)

of Sec. 2 of the Act would prevail.

Upon consideration of the submissions and on

perusal of the provisions of the two Acts we

respectfully differ with the interpretation that is sought

to be given by the Ld. Sr. Counsel for the State of Bihar.

In the first instance, there cannot be two laws on the

same subject. It is trite that the golden rule of

interpretation of statute is that ordinary meaning

should be given to the words appearing in the statutes.

The object of Bihar Urban Planning and Development

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Act, 2012 as would appear from its preamble is to make

provision for promotion of planned growth and

development of urban areas and such rural areas

having potential of urbanization and regulation thereof

including land use in these areas of State of Bihar. On

the other hand, the object of the Bihar Municipal Act,

2007 is stated to be to consolidate and amend the laws

relating to the municipal governments in the State of

Bihar in conformity with the provisions of the

Constitution of India based on the principles of

participation in, and decentralization, autonomy and

accountability of urban self-government at various

levels, so on and so forth.

As would appear from the objects of the two Acts,

the Bihar Urban Planning and Development Act, 2012 is

a general law making provisions for promotion of

planned growth of various areas in the State whereas

the Bihar Municipal Act, 2007 obviously appears to be a

special law making specific provision as to how the

planned growth should take place. Therefore, in our

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considered opinion, the provisions of the two Acts are

quite distinct and are rather complementary and

certainly not contradictory or inconsistent with each

other. It, therefore, cannot be said that the provision of

the Bihar Municipal Act, 2007 stands superseded by the

Bihar Urban Planning and Development Act, 2012. If

such a view is to be taken, it would be inconsistent with

the object of the two statutes. In any case, we do not

find any inconsistencies in the two provisions, viz., Sec.

2(xvi) of the 2012 Act and Sec. 2(91) of the 2007 Act.

While Sec. 2(xvi) broadly defines what “Development

Plan” means, which would be quite natural considering

the general nature of the Act reflecting legislative policy

for planned development, Sec. 2(91) of the Municipal

Act, 2007 is specific in defining the words

“Development Plan/Master Plan”. The submission of

the Ld. Sr. Counsel for the State of Bihar on this count,

therefore, does not appear to have any merit.

Having held so, we may now move on to the

submissions of Mr. Rahul Ganguly, Ld. Adv. for the

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applicant with regard to the mandatory nature of the

provision of EIA Notification, 2006 and Appendix II

appended thereto referred to by him. We are inclined

to agree with his contention that the notification is

mandatory. We have arrived at the conclusion in view

of the fact that the EIA Notification 2006 of which

Appendix II is a part has been issued by the MOEF & CC,

Govt. of India in exercise of its power conferred under

sub-rule (3) of Rule 5 of Environment (Protection)

Rules, 1986.

We may reproduce the relevant provision of

Appendix II hereunder :-

“1.1 Will the existing land use get

significantly altered from the project that is not

consistent with the surroundings? (Proposed

land use must conform to the approved Master

Plan/Development Plan of the area. Change of

land use if any and the statutory approval from

the competent authority be submitted). Attach

Maps of (i) site location, (ii) surrounding features

of the proposed site (within 5000 meters) and

(iii) the site (indicating levels & contours) to

appropriate scales. If not available attach only

conceptual plans.”

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As would appear from the above, clause 1.1. under

the head “Land Environment” clearly mandates that the

proposed land use must conform to the “approved

Master Plan/Development Plan” (emphasis supplied).

Clearly, therefore, Sec. 2(91) of Bihar Municipal Act

appears to be inconsistent with clause 1.1 referred to

above. For the sake of convenience, Sec. 2(91) of Bihar

Municipal Act, 2007 is reproduced below :-

“2(91) .. “Development Plan/Master Plan”

means the draft Development Plan/Master Plan

and the final Development Plan/Master Plan

prepared under this Act.”

In our considered opinion, therefore, the above

provision which categorically brings within its fold even

“the draft Plan/Master Plan” to define “Development

Plan/Master Plan” under the Bihar Municipal Act, 2007,

is inconsistent with Appendix II of MOEF Notification of

2006. This, in our view, would render the above not

only otiose but also inconsistent and in conflict with the

MOEF Notification, 2006. We, therefore, would expect

the State Govt. to consider as to whether the provision

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should be amended or not.

In the admitted position that the Patna Master Plan has not

yet been approved and that approved Master Plan is a

mandatory requirement under the MOEF Notification referred to

earlier in respect of constructions with built up area of 20,000 sq.

meters or more, any such construction carried out in the

absence of such a Master Plan or in pursuance of any permission

granted by any authority would be illegal. We, therefore, direct

that, further to our orders dated 30.07.2014 and 22.09.2014, all

constructions in the city of Patna and in the areas where the

city is proposed to be expanded requiring EC for project

8(a) under Schedule I of EIA Notification, 2006, shall be

stopped forthwith until the Master Plan is finally

approved. This, of course, is with the rider that the

Committee constituted by Notification No. 618 UD&HD

dated 15.9.2016 shall be reconstituted by inducting

competent persons as its members. We shall expect

action to be taken on this by the State of Bihar within a

period of six weeks. An affidavit of compliance shall be

filed on or before the next date with advance copies on

the other side.

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List on 4.11.2016.

.........................................

Justice S.P.Wangdi, JM

………………………………………….

Prof. (Dr.) P. C. Mishra, EM